ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 679 of 2023.

Date of hearing

Order with signature of Judge

01.02.2024.

1.         For orders on office objections.

2.         For hearing of bail application.

            Mr. Mir Muhammad Bhagat, Advocate for applicant.

            Mr. Nadeem Ahmed S. Qureshi, Advocate for complainant.

            Mr. Ali Anwar Kandhro, Additional Prosecutor General.

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Muhammad Saleem Jessar, J: Through this application, applicant Barkat Ali Machhi has sought for his admission to pre-arrest bail in Crime No.19 of 2023, registered at Police Station Fatehpur (District Larkana), for offences punishable under Sections 392, 506 (2), 337-A (i), 337- F (i) 337-F (v), 504, 147, 148, 149 P.P.C. His similar request was turned down by learned Additional Sessions Judge-V, Larkana, vide his Order dated 10.11.2023.

            2.         The allegation against applicant/ accused as per F.I.R lodged by complainant Muhammad Aslam is that, on 21.9.2023 the applicant alongwith other co-accused persons while boarding on motorcycles came at the shop of the complainant; the applicant was allegedly having “lathi” in his hand and he caused “lathi” blow to PW Hyder Ali on elbow of his right arm, while other co-accused are alleged to have caused blows to other witnesses, whereas four other co-accused are alleged to have robbed rice-bags, solar plates, battery and cash. The motive for the incident as set-out in the F.I.R is dispute between the parties over a plot.    

            3.         Learned counsel for the applicant mainly contended that, the applicant has been implicated in this case by complainant with malafide intention and ulterior motives; that F.I.R is delayed for about one month without furnishing plausible explanation; that the injury assigned to applicant is not on vital part of body of injured witnesses; that the offences alleged agaisnt applicants do not fall within prohibitory clause of Section 497 Cr.P.C. He further added that, there is counter version of the incident in shape of F.I.R No. 18 of 2023 lodged by one Mujahid Ali Machhi with same police station in respect of same incident. Lastly, learned counsel prayed for confirmation of interim pre arrest bail.

            4.         Learned counsel appearing for the complainant opposed the grant of bail to applicants/ accused on the grounds that the applicant has been nominated in the F.I.R with specific role of causing injury to PW Hyder Ali. Whereas, learned D.P.G appearing for the State conceded for confirmation of interim pre arrest bail in view of the fact that the sections applied in the F.I.R do not fall within prohibition as contained in Section 497 Cr.P.C. 

            5.         From tentative assessment of the record it appears that there is delay of about a month in lodging of the F.I.R. It is well settled law that the delay is falling within the ambit of deliberation and afterthought, therefore, it is always considered to be fatal for the prosecution case. The injury assigned to applicant is not on vital part of body of injured Hyder Ali. It further reflects from record that the Sections applied in the F.I.R except section 392 P.P.C do not fall within prohibitory clause of Section 497 Cr.P.C. However, allegation of  robbery is assigned to co-accused. Moreover, per learned counsel there are counter cases between the parties, as according to him, from the side of applicant one Mujahid Ali Machhi has also lodged F.I.R No.18/2023 with same Police Station i.e. P.S Fatehpur. Perusal of F.I.R No.18/2023 reflects that the place of incident is different but the date of the alleged is same. In F.I.R No.18/2023, motive as set-out in both F.I.Rs, is also same. Prima-facie, it appears that, if there is no counter version of the same incident, then there appears that at-least there are counter blast cases between the same parties over same motive. Moreover, the applicant has already joined the trial and attending the trial Court regularly.

            6.         In view of foregoing, the application in hands stands allowed. Consequently, interim pre-arrest bail already granted to applicants vide Order dated 16.11.2023, is hereby confirmed on same terms and conditions.

                                                       Judge

Ansari